LIVING TO SEE HIS GLORY DAYS: WHY HAMILTON'S..., 17 J. Marshall Rev.... 17 J. Marshall Rev. Intell. Prop. L. 92 John Marshall Review of Intellectual Property Law 2017 Comment Deidre Davis a1 Copyright © 2017 Deidre Davis LIVING TO SEE HIS GLORY DAYS: WHY HAMILTON'S LIN MANUEL MIRANDA IS NOT LIABLE FOR COPYRIGHT INFRINGEMENT, BUT OTHER WRITERS AND COMPOSERS ARE I. INTRODUCTION 93 II. BACKGROUND 94 A. Federal Copyright Laws 94 B. Sampling Music: Permissions and Penalties 96 C. Case Law Pursuant to Copyright Laws 97 D. The Process of Creating Hamilton 98 E. Composing the Song, “Sorry,” by Justin Bieber and Allegations of Copyright Infringement 99 III. ANALYSIS 100 A. Advantages of Obtaining Preliminary Permissions Before Using Copyrighted Works 100 B. Sampling or Using a Work Without Permission: Negative Outcomes That May Occur as a Result 102 C. Using a Sampling Without Infringement 103 IV. PROPOSAL 105 V. CONCLUSION 108 *93 I. INTRODUCTION Transforming from “The Hamilton Mixtape” 1 in 2013 at the Vassar Reading Festival, 2 to a musical worthy of President Barack Obama's attendance, 3 the Broadway musical, Hamilton, continues to receive more popularity than the creator, Lin Manuel Miranda, ever imagined would occur. Miranda publically disclosed many influences for the musical composition and character depictions he chose for the hit musical. 4 Additionally, he references “classics” 5 by directly quoting or sampling them in the Hamilton score, 6 such as his “subconscious” 7 inspiration from Cypress Hill's song, “Insane in the Brain,” 8 for the lyrics relating to Alexander Hamilton possessing a “top notch brain.” 9 Miranda directly uses the above influences and references without copyright infringement liability. Yet, others are generally faced with liability for similar situations. For example, Justin Bieber, who's hit song, “Sorry,” is being accused of *94 copyright infringement, 10 may face liability damages similar to the case involving the song, “Blurred Lines.” 11 Although strikingly similar to Miranda's use, Bieber, and many others may face problems with copyright infringement and hefty damages. 12 The difference between the uses of copyrighted works in regard to Justin Bieber and Lin Manuel Miranda, is the preliminary steps Miranda chose before using any influences or references in the musical Hamilton. 13 In addition to these preliminary permissions, Miranda added his own original twist on the pieces. 14 In other words, even if a writer, © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 LIVING TO SEE HIS GLORY DAYS: WHY HAMILTON'S..., 17 J. Marshall Rev.... such as “Insane in the Membrane” writer, Cypress Hill, pursued a claim against Miranda for using “subconscious” inspiration for a series of lyrics in Hamilton, 15 Miranda would still be free of liability. Part II of this comment specifies background for the process of creation, in the aspects of Broadway musicals and pop- artists. The background for musical theatre illustrates the timeline for compositions, character development, and the workshop of a musical. For parallel and contrast, a discussion on the timeline for a composition from a pop-artist prospective, along with the steps that receive copyright protection, will take place. Additionally, the background will illustrate the guidelines of copyright law and registration of a copyrighted work, liability for copyright infringement, and alternatives for avoiding copyright infringement. Part III discusses why Miranda would not be liable for copyright infringement. Additionally, this comment constructs a comparison of Miranda's use of other works to Justin Bieber's use of other works, to show why the outcome of each case is different, pursuant to the Copyright Act of 1976 and precedent cases. Part IV proposes how to avoid the issues of copyright infringement liability in the future, with preliminary measures, as well as how to stray from reliance on fair use. II. BACKGROUND A. Federal Copyright Laws The scope of federal copyright law is applicable to subject matter that is tangible. 16 To look at tangibility in a different way, think about the fact that if something is not given in any type of physical manner, such as an idea or an expression, then copyright *95 law does not cover it. 17 Copyright, in general, protects musical works and sound recordings from duplication or sampling without the creator's permission. 18 The copyright protection stems from the idea that giving the creators exclusive rights to their works will promote “progress of science and useful arts.” 19 These copyright protections last for the term of 70 years after the creator's death. 20 However, anything before 1922 is public domain and useable free of copyright infringement, as the copyrights have expired on these works. 21 Although copyright protection extends to any tangible creative work, a copyright owner may register their work as well. 22 For a musical theatre production, copyrights are generally registered through the United States Copyright Office. 23 Musical compositions, however, are generally registered with Broadcast Music Inc. (BMI), or The American Society of Composers, Authors and Publishers (ASCAP), as these registries ensure payment to the artists when their music plays. 24 Copyrights provide not only protection, but limits on the creator's exclusive rights, with exceptions for others to use the works, including fair use. 25 Other exceptions include transferring copyright ownership, 26 and providing royalties to the creator. 27 Even with exceptions, many individuals still become liable for the infringement of copyrights. 28 In other words, if an individual uses a copyright protected work, without permission from the creator, they may be liable for copyright infringement. Copyright *96 infringement liability gives numerous options for remedies, such as injunctions, 29 damages, and profits. 30 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 LIVING TO SEE HIS GLORY DAYS: WHY HAMILTON'S..., 17 J. Marshall Rev.... B. Sampling Music: Permissions and Penalties Sampling music means taking parts of prior compositions or recordings, and incorporating them into a new composition or recording. 31 Although sampling is not illegal, the person(s) sampling must receive permission from the copyright owner. 32 Obtaining permission for the sampling is generally given through a license. 33 There are various routes for obtaining a license, such as paying a flat fee, or paying the copyright owner a royalty based off of the amount of sampling. 34 Failing to receive permission for use of the sampling causes issues under copyright law. 35 Substantial penalties, generally in monetary damages, occur when an artist samples another's music in their own composition or recording without permission. 36 Additionally, the copyright owner of the sampling may also require an “injunction,” or restriction, of the copyright infringer's music, causing the infringer “to recall all of [their] albums and destroy them.” 37 Although fair use may be able to relieve the infringer from liability, relying on fair use may be dangerous because works that are substantially similar are rarely found to fall under the exception of fair use. 38 *97 C. Case Law Pursuant to Copyright Laws Further illustrating copyright law, are the cases brought pursuant to the black letter law. A common theme noticed in many of the copyright infringement cases is the allegations of “sampling” music, and doing so without permission. 39 The case between Casey Dienel and Justin Bieber illustrates the consequences that occur if an artist samples another's music without permission. Justin Bieber is not the only artist facing possible consequences of copyright infringement. Currently, Kanye West is being sued by a Hungarian rock artist, Gabor Presser, for alleged copyright infringement. 40 Robin Thicke's “Blurred Lines,” is currently on appeal after the jury found copyright infringement, believing that “Blurred Lines” is sampled from Marvin Gaye's “Got to Give It Up.” 41 Many other popular artists and composers have been sued for copyright infringement allegations, similar to Robin Thicke's case, including The Beach Boys, Led Zeppelin, George Harrison, Ray Parker Jr., and Vanilla Ice. 42 *98 D. The Process of Creating Hamilton Each Broadway musical tends to create its own unique path before making it to the Broadway stage; 43 beginning at the script for the show, and evolving to opening night. For Hamilton, the process began after writer, creator, and title role star of the musical, Lin Manuel Miranda, picked up an Alexander Hamilton biography, written by Ron Chernow, in 2008 while on vacation. 44 Shortly after, Miranda began writing the musical, and in 2009, piloted a song from “The Hamilton Mixtape,” later renamed “Hamilton,” at the White House Poetry Jam, in front of President Obama. 45 The Hamilton Mixtape began further transformation when the show work-shopped at the Vassar Reading Festival in 2013. Later renamed to “Hamilton,” the musical took to Off-Broadway 46 in early 2015, 47 and by July 13, 2015, the musical found its permanent spot on Broadway, at the Richard Rodgers Theatre. 48 During the process of making Hamilton a hit Broadway musical, many transformations and ideas evolved to create the musical viewed on stage today. 49 Miranda credits the development of the lead character, Alexander Hamilton, to Ron Chernow's biography of Hamilton. 50 Chernow's book, in addition to books written by Joseph J. Elis, laid the groundwork for how Miranda decided to portray the founding fathers. 51 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 LIVING TO SEE HIS GLORY DAYS: WHY HAMILTON'S..., 17 J. Marshall Rev.... The composition for a musical tends to be one of the most intricate details of a musical. The creation and process of a composition goes far beyond lyrics. 52 Processes for compositions vary from arranging music notes in a particular fashion, to incorporating other ideas or technologies to gain a new evolution for the sound or style of the composition.